2008 edition - Fort Sam Houston - U.S. Army

e o r d e r e d i f , i n t h e s a m e a c t i o n , a s e n t e n c e i s
approved.
(ii) Lack of sufficient evidence. A rehearing
may not be ordered as to findings of guilty when
there is a lack of sufficient evidence in the record to
support the findings of guilty of the offense charged
or of any lesser included offense. A rehearing may
be ordered, however, if the proof of guilt consisted
of inadmissible evidence for which there is available
an admissible substitute. A rehearing may be ordered
as to any lesser offense included in an offense
of which the accused was found guilty, provided
there is sufficient evidence in the record to support
the lesser included offense.
Discussion
For example, if proof of absence without leave was by improperly
authenticated documentary evidence admitted over the objection
of the defense, the convening authority may disapprove the findings
of guilty and sentence and order a rehearing if there is reason
to believe that properly authenticated documentary evidence or
other admissible evidence of guilt will be available at the rehearing.
On the other hand, if no proof of unauthorized absence was
introduced at trial, a rehearing may not be ordered.
(iii) Rehearing on sentence only. A rehearing
on sentence only shall not be referred to a different
kind of court-martial from that which made the original
findings. If the convening authority determines
a rehearing on sentence is impracticable, the convening
authority may approve a sentence of no punishment
without conducting a rehearing.
( D ) A d d i t i o n a l c h a r g e s . A d d i t i o n a l c h a r g e s
may be referred for trial together with charges as to
which a rehearing has been directed.
(E) Lesser included offenses. If at a previous
trial the accused was convicted of a lesser included
offense, a rehearing may be ordered only as to that
included offense or as to an offense included in that
f o u n d . I f , h o w e v e r , a r e h e a r i n g i s o r d e r e d i m -
properly on the original offense charged and the
accused is convicted of that offense at the rehearing,
the finding as to the lesser included offense of which
the accused was convicted at the original trial may
nevertheless be approved.
(2) “Other” trial. The convening or higher authority
may order an “other” trial if the original
proceedings were invalid because of lack of jurisdiction
or failure of a specification to state an offense.
The authority ordering an “other” trial shall state in
the action the basis for declaring the proceedings
invalid.
(f) Contents of action and related matters.
( 1 ) I n g e n e r a l . T h e c o n v e n i n g a u t h o r i t y s h a l l
state in writing and insert in the record of trial the
convening authority’s decision as to the sentence,
whether any findings of guilty are disapproved, and
orders as to further disposition. The action shall be
signed personally by the convening authority. The
convening authority’s authority to sign shall appear
below the signature.
Discussion
See Appendix 16 for forms.
R.C.M. 1107(f)(3)
(2) Modification of initial action. The convening
authority may recall and modify any action taken by
that convening authority at any time before it has
been published or before the accused has been officially
notified. The convening authority may also
recall and modify any action at any time prior to
forwarding the record for review, as long as the
modification does not result in action less favorable
to the accused than the earlier action. In addition, in
any special court-martial, the convening authority
may recall and correct an illegal, erroneous, incomplete,
or ambiguous action at any time before completion
of review under R.C.M. 1112, as long as the
correction does not result in action less favorable to
the accused than the earlier action. When so directed
by a higher reviewing authority or the Judge Advocate
General, the convening authority shall modify
any incomplete, ambiguous, void, or inaccurate action
noted in review of the record of trial under
Article 64, 66, 67, or examination of the record of
trial under Article 69. The convening authority shall
p e r s o n a l l y s i g n a n y s u p p l e m e n t a r y o r c o r r e c t i v e
action.
Discussion
For purposes of this rule, a record is considered to have been
forwarded for review when the convening authority has either
delivered it in person or has entrusted it for delivery to a third
party over whom the convening authority exercises no lawful
control (e.g., the United States Postal Service).
(3) Findings of guilty. If any findings of guilty are
disapproved, the action shall so state. If a rehearing
is not ordered, the affected charges and specifica-
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